Tag: Immigration Updates & FAQs

The failure of Congress to reach an agreement regarding the federal budget resulted in a government shutdown effective January 20, 2018 at 12:01 AM. The shutdown is expected to impact immigration related services provided by the U.S. Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP) and the U.S. Department of State (DOS).

U.S. Department of Labor
DOL will not process, nor accept for processing, Labor Condition Applications (required for H-1B, H-1B1 and E-3 visa applications), Prevailing Wage Requests, and PERM labor certification applications. Additionally, DOL will not adjudicate applications or PERM audit responses filed prior to the shutdown. When the last government shutdown resolved in 2013, DOL did make provisions to allow for the late filing of PERM applications with expired recruitment and PERM audit responses that were not filed due to the shutdown.

U.S. Citizenship and Immigration Services
Because USCIS application and petition adjudications are primarily funded by user application fees, USCIS is expected to continue operations without great disruption. However, the DOL shutdown discussed above will impede the filing of visa petitions that require a certified Labor Condition Application as a precondition for filing, including H-1Bs, H-1B1s, and E-3s as referenced above. USCIS has not yet announced whether it will accept H-1B, H-1B1, and E-3 extension of status petitions if such petitions are filed without a certified LCA.

In contrast, USCIS E-Verify service is suspended. During the shutdown, employers will not be able to enroll in E-Verify or to access their E-Verify accounts to verify the employment eligibility of new hires and resolve tentative non-confirmations (TNCs). E-Verify customer service, online webinars and training sessions, and the Self-Check program will also be unavailable during the shutdown. Employers must still comply with their Form I-9 obligations.

U.S. Customs and Border Protection
CBP personnel, responsible for inspection and law enforcement at U.S. ports of entry, are considered “essential personnel” and U.S. borders and Preflight Inspections (PFI) areas remain open. However, there may be staffing adjustments that could result in increased wait times to clear inspection and secure admission to the U.S. Additionally, petitions that are adjudicated by CBP officers at the border and PFI areas, including TN applications and L-1 petitions for Canadian citizens, could be impacted by the shutdown if such functions are deemed nonessential.

U.S. Department of State
U.S. Embassies and Consulates remain open and will continue to process visa applications as long as funding remains in place. Visa application processing times may be delayed due to staffing adjustments or slowdowns at other federal agencies responsible for processing the security clearances required for visa issuance. A prolonged shutdown could ultimately exhaust DOS appropriations and result in the suspension of visa processing functions for all but emergency cases. Foreign nationals intending to apply for a visa at a U.S. Consulate abroad or intending to travel outside the U.S. without a valid visa in their passport should consult with immigration counsel prior to making definitive plans.

Other Functions Impacted
Employers and foreign nationals should note that the Social Security Administration (SSA), while open, will not accept or process applications for social security numbers. This will impact foreign nationals who require a social security number to be placed on payroll, obtain a driver’s license, and/or open bank accounts.

The situation posed by the federal government shutdown remains fluid, and the impact on immigration related services may change the longer the shutdown persists. Gibney will be closely monitoring the situation and we will provide updates as needed. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

Monday, April 2, 2018 marks the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions subject to the annual cap for the Fiscal Year (FY) 2019, which begins October 1, 2018. Preparation for H-1B cap season starts much earlier, with the identification of prospective beneficiaries and gathering of supporting documentation. With increasing demand for H-1B workers, we encourage employers to identify potential H-1B cap cases now and work with immigration counsel to ensure timely filing of cases.

Now is the time of year when employers should identify any current or future employees who may require a cap-subject H-1B petition to work in the U.S. Under current rules, the first day to file H-1B cap petitions is April 1, 2019, for an employment start date of October 1, 2019.

What’s New this Year?

This year, employers face greater uncertainty due to the Department of Homeland Security’s recent publication of a proposed rule that could substantially alter the H-1B cap preparation and filing process. Specifically, the Administration has proposed to implement an online pre-registration period. Employers would register intended cap petition beneficiaries online, and U.S. Citizenship and Immigration Services (USCIS) would conduct a lottery of the registrants. Employers would only file H-1B cap petitions for registrants selected in the lottery, during a filing window established by USCIS. For additional details on the proposed changes, see Gibney’s Immigration Alert: USCIS Proposes to Modify FY2020 H-1B Cap Process.

The proposed rule was sent to the Office of Management and Budget (OMB) for review on January 14, 2019. OMB has 90 days to review the rule, and the Administration has indicated it would like to implement the rule by April 2019. However, the Administration has also indicated that it could postpone implementation of the pre-registration process until next year.

What Should Employers Do Now?

Because it is highly uncertain whether USCIS will be able to implement the pre-registration process this year, employers may need to prepare to file petitions with USCIS starting on Monday, April 1, 2019. With increasing demand for H-1B workers, we encourage employers to identify potential H-1B cap cases now and work with immigration counsel to take appropriate steps to ensure timely preparation and filing of cases.

Why Start Planning Now?

Last year, USCIS received more than 190,000 H-1B cap-subject petitions, far surpassing the 85,000 visas available, and the H-1B cap petition quota was reached during the first week of filing for the sixth consecutive year. We anticipate that the H-1B quota will be reached quickly again this year. This means that absent a pre-registration process, employers should plan to file all H-1B cap petitions by April 1, 2019. Prior to filing any petitions, employers must work proactively with counsel to vet cases for eligibility, obtain credential evaluations, and secure Labor Condition Applications from the U.S. Department of Labor.

H-1B Petition Categories

H-1B cap cases generally fall within two categories:

• “Standard” Cap Petitions. The minimum educational requirement is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 annually.
• U.S. Advanced Degree Petitions. The beneficiary must hold an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree cases each fiscal year.

Who Should Be Considered for an H-1B Cap Petition?

Potential beneficiaries include, but are not limited to:

• New hires from overseas
• F-1 students completing a qualifying course of study or working pursuant to Optional Practical Training
• Some L-1 visa holders
• TN, E-3 and other nonimmigrant status holders who wish to change to H-1B status in the coming year
• H-4 Dependent EAD holders. The Administration has indicated that it intends to eliminate work authorization eligibility for the H-4 spouses of certain H-1B visa holders. Employers may wish to consider filing cap petitions for these employees. In addition, employers may wish to evaluate options for L-2 or E dependent EAD holders
• Certain DACA recipients

A Reminder – H-1B Petitions Not Subject to the Cap

Certain H-1B petitions are not counted against the annual cap, including:

• Individuals in H-1B Status Previously Counted Against the Cap. In most cases, individuals who were counted against the cap in a previous fiscal year are not subject to the current cap. This includes extensions of status for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
• Petitions for Exempt Organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt.

Gibney will be closely monitoring all proposed changes to policy and procedure and will provide updates. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

On December 4, 2017, the Supreme Court granted the Administration’s request to stay preliminary injunctions which had temporarily blocked the Administration’s travel ban from taking effect. With this decision, the Supreme Court allowed the travel ban to go into effect while legal challenges against it continue. The Supreme Court urged the lower appeals courts to render decisions quickly on the legality of the ban. In the interim, the Administration may fully enforce the ban.

The Administration’s travel ban, set forth in a Proclamation issued in September 2017, announced various restrictions on nonimmigrant and immigrant entry for certain foreign nationals who are citizens or nationals of eight countries: North Korea, Venezuela, Chad, Syria, Iran, Somalia, Libya, and Yemen. The Administration previously issued travel restrictions through Executive Orders in January and March for certain nationals of six Muslim-majority countries, which have been challenged in Federal Court. The new Proclamation removes Sudan from the list of previously targeted counties, and imposes new travel limits for nationals of North Korea, Venezuela, and Chad. Case-by-case waivers and exemptions may be granted if appropriate in very limited circumstances.

For more information on country specific restrictions, visit the Bureau of Consular Affairs site and the Department of Homeland Security FAQs. Please consult with immigration counsel for legal advice.

Gibney will continue to monitor events and how these new guidelines will be implemented at the border and at Consulates abroad. For additional information, please visit Gibney’s Immigration Advisory and FAQs. If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

On October 20, 2017, the U.S. Department of Homeland Security’s (DHS) Office of Inspector General released a report outlining recommendations to improve the U.S. Citizenship & Immigration Services (USCIS) Administrative Site Visit and Verification Program and targeted site visits for H-1B non-immigrant workers.

What Employers and Foreign Nationals Can Expect 

The USCIS’s Fraud Detection and National Security (FDNS) Unit already conducts random inspections at worksites of non-immigrant employees. However, in line with the DHS’s new report along with the Administration’s prior notices on implementing enhanced vetting procedures, we anticipate that DHS will likely be conducting more frequent and more thorough onsite visits.

FDNS inspectors may arrive at H-1B employee offices without advance notice. Below are some practical tips to prepare for site visits:

• If an FDNS inspector arrives at a worksite, an appropriate HR and Gibney contact should be notified immediately to confirm and provide any requested information.
• An FDNS inspector should provide proper identification in order to verify credentials and for any follow-up communications, as needed.
• An inspector may ask to speak directly to foreign national employees, management, and/or HR to verify H-1B petition details such as job title, job duties, educational background, working hours, salary/pay statements, and worksite locations. FDNS inspectors will check these answers against the petition on file; therefore, it is important that foreign national employees are thoroughly familiar with all aspects of the H-1B petition.
• Remind employees, managers and HR to notify their Gibney contact in advance of any changes in job details such as duties or worksite location.
• It is important that employers put in place protocols for lobby and security staff to follow in the event of a site visit.

Please contact immigration counsel if you have specific questions about the nature and scope of site visits and how to prepare.

For more information on the Administration’s prior announcements, please see Gibney’s alerts regarding the “Buy American, Hire American” Executive Order and enhanced vetting procedures.

Gibney will continue to closely monitor these developments. For more information on this alert, please contact your designated Gibney representative, or email info@gibney.com.

What is the Diversity Visa Lottery?
The Diversity Immigrant Visa Program, which is administered by the U.S. Department of State, permits up to 50,000 diversity immigrant visas to be granted for fiscal year 2019 to persons from countries with low immigration rates to the United States. Foreign nationals are selected for eligibility to file an application for permanent residence under this program on the basis of a lottery.

When can I apply?
The U.S. Department of State will accept applications online for the FY2019 diversity lottery between 12 noon Eastern Daylight Time (EDT) (GMT-4) on Wednesday, October 18, 2017, and 12 noon Eastern Standard Time (EST) (GMT-5) on Wednesday, November 22, 2017. Applicants are encouraged to apply in the early part of the application period. Note: due to a technical issue, the Department of State has closed the previous diversity lottery entry period that began on October 3, 2017. Entries submitted during the previous October 3, 2017 and October 10, 2017 entry period are not valid and will not be accepted or considered for selection in the FY2019 lottery. Individuals who submitted an application during the previous October 3-10 entry period must submit a new entry in order to be considered for selection in the FY2019 diversity lottery.

Who is eligible?
In order to enter the diversity visa lottery, an individual must be a national of an eligible country and must meet minimum education/work requirements.

Nationality:
No visas may be awarded to foreign nationals of countries that have sent more than 50,000 immigrants to the U.S. over the period of the last five years. For the 2019 diversity lottery, nationals of the following countries are NOT eligible to apply: Bangladesh, Brazil, Canada, China (mainland born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. There were no changes in eligibility this year.

Nationality is defined by the location of a person’s birth. However, if a foreign national is ineligible to apply based on their country of birth, there are two alternate ways to qualify. First, a foreign national whose spouse was born in a country whose natives are eligible to apply may apply provided the spouse is eligible. Second, a foreign national who was born in a country whose natives are ineligible to apply is eligible to apply if neither of his/her parents were born in or legally resided in that country at the time of the foreign national’s birth.

Education/Work:
In addition to meeting the nationality requirement, in order to enter the diversity lottery, a foreign national must have either a high school education or its equivalent, or at least two years of work experience within the past five years in an occupation requiring at least two years training or experience to perform.

How do I Apply?
Diversity lottery submissions are only accepted electronically. The electronic applications are submitted via the U.S. Department of State’s Diversity Visa Lottery website. Applicants may only submit ONE lottery entry; individuals who attempt to submit more than one application will be disqualified from participating in the lottery. Note: entries submitted during October 3-10 are not valid and have been excluded from the system; therefore, they will not count as a duplicate entry.

A diversity application must be accompanied by digital photographs of the applicant, the applicant’s spouse (if applicable), and the applicant’s dependent children (if applicable) taken in accordance with specific requirements set forth in detail on the U.S. Department of State’s website. Note: each spouse may submit his/her own application if he/she otherwise qualifies. In completing the electronic entry form, the following data will be required: full name, date of birth, gender, city of birth, country of birth, country of eligibility for the program, photograph(s), mailing address, current country of residence, phone number (optional), email address, educational level, marital status, number of children, and information about spouse and children.

How does the Selection Process Work?
Winners of the lottery will be selected in a random computerized process. After entering the lottery, it is critical to safeguard the confirmation page as it contains information that is needed to check the status of the application. Starting May 15, 2018 (through at least September 30, 2019), applicants can check the status of their application using their confirmation number through the Entry Status Check section of the E-DV website. Lottery winners will not receive correspondence in the mail to confirm the selection of their application; the status of the application can only be checked through the E-DV website.

Selection in the lottery does not automatically confer lawful permanent resident status. In order to become a permanent resident of the U.S., a selected lottery winner’s (and their dependents) application(s) for permanent residence must be filed and approved by September 30, 2019. The permanent residence application may be filed either via adjustment of status (if the foreign national is in the U.S. in a valid nonimmigrant status) or via consular processing.

Finally, please note that more lottery “winners” are selected than there are immigrant visas available because some winners will not be eligible to become U.S. permanent residents of the U.S. Accordingly, some individuals who are selected to apply for diversity visas may ultimately be unable to become U.S. permanent residents if the available diversity immigrant visas are assigned prior to their permanent residence application being adjudicated.

Where Can I Get More Information?
Instructions regarding how to apply for the 2019 Diversity Visa Lottery may be obtained from the U.S. Department of State’s PDF instructions and U.S. Department of State’s website.

For more information or specific legal advice, please contact your designated Gibney representative or email info@gibney.com.

H-1B cap-subject visa petitions filed and approved by U.S. Citizenship and Immigration Services (USCIS) for Fiscal Year 2018 will take effect on or after October 1, 2017.

Change of Status Filings:
H-1B cap-subject petitions filed as “change of status” will take effect on October 1, 2017 if the beneficiary:

• Was physically present in the U.S. for the entire period from the date the petition was received through the date the application was approved
• Is physically present in the U.S. on October 1, 2017 for the change of status to take effect

After October 1, a beneficiary departing the U.S. must apply for an H-1B visa at a U.S. Consulate abroad in order to re-enter the U.S. in valid H-1B status. U.S. Consulates require a personal interview to apply for a visa, and most require a number of weeks to schedule an interview. Actual visa processing times vary by Consulate and can be found at the U.S. Department of State website. All beneficiaries are advised to check the website of the specific Consulate for further information on scheduling the interview and visa processing.

Consular Notification Filings:
H-1B cap-subject petitions filed as “consular notification” will not automatically change the beneficiary’s status to H-1B without further action. To activate H-1B status, the beneficiary must depart the U.S. if not already abroad, obtain an H-1B visa at a U.S. Consulate, and re-enter the U.S. utilizing the H-1B visa. H-1B status will take effect upon the date of re-entry into the U.S. (Note: Canadians are visa exempt.)

Next Steps for Employers:

• Form I-9 Reverification: Employers may need to update the employment eligibility under Section 3 of Form I-9 for H-1B cap beneficiaries whose I-9 documents are expiring.
• Taxes for F-1 and J-1 Non-Immigrants: F-1 students and J-1 exchange visitors who are maintaining valid status may be exempt from FICA tax withholding. However, once F-1 or J-1 foreign nationals change to H-1B status, they are no longer exempt and withholdings will need to be adjusted.
• Pending H-1B Petitions: Employers with pending H-1B cap-subject petitions can now request an upgrade to Premium Processing by filing Form I-907 along with an additional filing fee in the amount of $1,225. USCIS must respond within the 15-day period with either an adjudication or Request for Further Evidence, or will refund the fee. USCIS has stated that approval by early October is not guaranteed.

Please visit the USCIS website for further details on the H-1B process. For more information, please contact your designated Gibney representative or email info@gibney.com.

The Administration issued a Proclamation on September 24th, 2017 announcing various restrictions on nonimmigrant and immigrant entry for certain foreign nationals who are citizens or nationals of eight countries: North Korea, Venezuela, Chad, Syria, Iran, Somalia, Libya, and Yemen. The Administration previously issued travel restrictions through Executive Orders in January and March for certain nationals of six Muslim-majority countries, which have been challenged in Federal Court. The new Proclamation removes Sudan from the list of previously targeted counties, and imposes new travel limits for nationals of North Korea, Venezuela, and Chad, which take effect at different times.

The new restrictions took effect at 3:30 p.m. EDT on September 24th for foreign nationals who were subject to the last travel ban and lack a credible claim of a bona fide relationship with a person or entity in the U.S. However, the travel restrictions will go into effect at 12:01 a.m. EDT on October 18th for everyone else subject to the proclamation, including nationals of Chad, North Korea, and Venezuela, and nationals of Iran, Libya, Syria, Yemen, and Somalia who do have a credible claim of a bona fide relationship. It has also been confirmed that existing visas remain valid and that limited exceptions/waivers will be available on a case-by-case basis.

For more information on country specific restrictions, visit the Bureau of Consular Affairs site and the Department of Homeland Security FAQs.

On September 18, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that it resumed Premium Processing for pending H-1B visa petitions subject to the Fiscal Year (FY) 2018 cap.

Processing for Non-Cap Subject H-1B Petitions
Premium Processing was previously suspended for all H-1B petitions starting April 3, 2017, and subsequently reinstated for H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program, as well as interested government agency waivers. Premium Processing is still suspended for all other H-1B petitions, including amendments and extensions of stay. USCIS noted that it plans to resume Premium Processing for all other remaining petitions not subject to the FY 2018 cap, when resources are made available. Remaining petitions not eligible for Premium Processing may be eligible to submit an expedite request if certain criteria is met. USCIS reviews all expedite requests on a case-by-case basis.

What Employers Can Expect
Employers with pending H-1B cap-subject petitions can now request an upgrade to Premium Processing by filing Form I-907 and submitting the $1,225 filing fee. USCIS must respond within the 15-day period with either an adjudication or Request for Further Evidence, or will refund the fee. USCIS has stated that approval by early October is not guaranteed.

Please visit the USCIS website for further details. For more information, see our previous alert Premium Processing Suspended For All H-1B Petitions Starting April 3rd.

Gibney will continue to closely monitor these developments. For more information on this alert, please contact your designated Gibney representative, or email info@gibney.com.

In April 2017, President Trump signed an Executive Order entitled “Buy American, Hire American,” which instructed the U.S. Department of Justice, Department of State, Department of Labor, and Department of Homeland Security to propose new rules, guidance, and reforms to ensure stricter enforcement of all current laws, “protect the interests of U.S. workers,” and prevent fraud and abuse within the U.S. immigration program. In August 2017, the Foreign Affairs Manual was updated to provide guidance to consular officers administering the issuance of U.S. visas.

Over the past few months, clients have reported a significant increase of the number of Requests for Evidence (RFEs) issued on immigration filings with the U.S. Citizenship & Immigration Services (USCIS) including H-1B specialty occupation petitions (cap-subject and change of employer) and L-1B specialized knowledge intracompany transferee petitions. Some clients have also reported an uptick in visa refusals and denials at consular posts abroad, as well as more difficult screening questions, for various non-immigrant visa types including L-1 intracompany transferees and E-2 treaty investors.

Additionally, the USCIS will begin requiring in-person interviews for employment-based Adjustment of Status (aka green card) applicants starting October 1, 2017.  Current USCIS policy allows for waivers of in-person interviews for the majority of employment-based non-immigrant visa holders.

What Employers and Foreign Nationals Can Expect

Employers should work with counsel to ensure that current company immigration programs are compliant with all legal requirements. Visa applicants should consult with counsel to thoroughly prepare for visa interviews in advance, and expect longer consular processing times. Adjustment of Status applicants should also be prepared for longer green card processing times.

Gibney will continue to closely monitor these developments. For more information on this alert, please contact your designated Gibney representative, or email info@gibney.com.

The Department of State (DOS) announced that as a result of the Russian government’s personnel cap imposed on the U.S. Mission, all nonimmigrant visa operations across Russia will be suspended beginning August 23, 2017.

Nonimmigrant visas (NIV) include temporary business visitors and common temporary work visas.

What Employers Can Expect

• Visa operations will resume on a greatly reduced scale.
• Beginning September 1, nonimmigrant visa interviews will be conducted only at the U.S. Embassy in Moscow.
• NIV interviews at the U.S. Consulates in St. Petersburg, Yekaterinburg, and Vladivostok are suspended until further notice.
• The reduced personnel and other changes are likely to result in ongoing delays in visa issuance at US consulates in Russia.

For more information regarding embassy operations, visa processing and next steps for those with previously scheduled visa appointments, view the full Fact Sheet published by DOS.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.